D. A. Osguthorpe v. Anschutz Land and Livestock Company, Inc., a Corporation , 456 F.2d 996 ( 1972 )

WINNER, District Judge

(dissenting in part).

I concur in the reversal of the judgment entered on the first claim, but I respectfully dissent from the affirmance of the judgment on the second claim. I agree that under the record made, the jury could find that plaintiff was entitled to recover the reasonable value of his services to defendant, but I disagree as to the factors which could be considered by the jury in fixing that reasonable value.

The jury was instructed that if plaintiff performed services for defendant “in connection with the determination of the cause of death of defendant’s sheep or the fixing of blame of such death on the United States or the Army, plaintiff is entitled to recover the fair and reasonable value of his services.” The jury was told that it could consider as factors in arriving at its verdict :

“4. The part or role which the plaintiff played in fixing the cause of death of the defendant’s sheep.

“5. The causal relationship, if any, between the services performed by the plaintiff and the amount of recovery which the defendant obtained from the United States Government as a result of the death of defendant’s sheep.

“6. The value of the benefits, if any, derived by the defendant from the plaintiff’s services in determining the cause of death of the sheep, if plaintiff did assist in determining such cause.”

At least some courts have adopted the rule that benefit to the defendant is not the measure of the reasonable value of services [See, United States for Use and Benefit of Citizens Nat. Bank v. Stringfellow (5 Cir. 1969) 414 F.2d 696] but my disagreement with the majority does not require adoption of that line of authority.

The “part or role which plaintiff played in fixing the cause of death of the defendant’s sheep” was twofold. He conducted an investigation and he testified as an expert witness before a Congressional Committee. The services mentioned in the “causal relationship” instruction include his expert testimony, and the “value of the benefits derived by the defendant from plaintiff’s services” include benefits derived from that same most effective testimony. In the trial below, plaintiff was permitted to express the opinion that his services were worth $25,000.00, and he based that opinion in part on “the fact that they were able to recover their loss from the Army without litigation which was very advantageous to the client.”

Thus, the Court is indirectly saying that the persuasiveness and effectiveness of an expert’s testimony may be used by a jury as a factor in fixing the expert’s compensation. If the contract were express rather than implied, and if the express contract were that the expert would be paid a larger fee if his client won the case than he would be paid if his employer lost the case, the contract would be semi-contingent and it would be void as against public policy. 31 Am.Jur.2d, Expert and Opinion Testimony § 12, p. 507; 16 A.L.R. 1464; 41 A.L.R. 1323; 45 A.L.R. 1423; Wright v. Corbin (1937) 190 Wash. 260, 67 P.2d 868; Barnes v. Boatman’s Nat. Bank of St. Louis (1941) 348 Mo. 1032, 156 S.W. 2d 597; Sherman v. Burton (1911) 165 Mich. 293, 130 N.W. 667.

The instructions permit plaintiff to recover under an implied contract for something which could not be awarded him under an express contract. I do not think that evidence of the favorable results stemming from plaintiff’s testimony before the Congressional Committee or the amount of his client’s financial recovery should have been presented to the jury, and I do not think that the gratifying results of that prior testimony were a factor to be considered by the jury in fixing the reasonable value of plaintiff’s compensation.

Expert witness fees should not be made commissionable, but I fear that such is the impact of the majority opinion.